A “view” from the Court: Justice Alito has his day in finale

Posted Mon, June 30th, 2014 5:08 pm by Mark Walsh

It’s the last day of June, and we know the Court is sitting for its last day of opinions this Term. June 30 is the latest the Court has sat since 1996, when the Justices took the bench on July 1 to issue just a single opinion, United States v. Winstar. (That was also the last time the Term extended into July.)

The courtroom as it appeared on the last day of opinions.

The public gallery of the courtroom is packed, but the bar section is only about one-quarter full. Now, if the Court had held its decision in the Aereo case until today, the bar section might have been packed with this town’s telecommunications attorneys, as it was during argument in the case.

At 9:54 a.m., retired Justice John Paul Stevens enters the courtroom and takes a seat in the front of the VIP section. Of course, he is wearing his trademark bow tie.

When the Court takes the bench at ten o’clock, Justice Antonin Scalia is absent. (He is on travel, the Public Information Office will say later.) It’s not unusual for Justices to be absent from opinion days, though it has been mostly a full bench this spring. It’s also not unheard of for a Justice to be absent when one of his or her opinions is being delivered. In that case, the Chief Justice typically summarizes the ruling on behalf of the traveling Justice. But we won’t have that today.

Once everyone is settled into their seats, Chief Justice John G. Roberts, Jr., says, “Justice Alito has the opinions of the Court in our two remaining cases this morning.”

This is greeted with some degree of surprise. There was an expectation that Samuel A. Alito Jr. would have the Court’s opinion in Harris v. Quinn, because that case was the last remaining one from the January sitting, and Alito was the only Justice yet to write from that sitting. But some Court observers were expecting the Chief Justice to have the opinion in Burwell v. Hobby Lobby Stores Inc., which he obviously does not.

Up first is Harris, which is of enormous importance to labor unions representing public-sector employees. The specific question in the case is whether home-health care workers in Illinois who serve Medicaid recipients may be compelled into a collective-bargaining arrangement by the state. Such as an arrangement was welcomed by most of the 20,000 home health workers, who designated a unit of the Service Employees International Union as their bargaining representative. But a few dissenters objected to paying the “agency fee” for being represented by the union.

“To explain how we resolve this question, I’l explain some of the details of the program,” Alito says.

He then proceeds to emphasize those details so thoroughly, it appears the Court may be ruling small, and not reaching a larger question: Whether it will use the case to overrule a key foundation of public-sector unionism, Abood v. Detroit Board of Education. That 1977 decision authorized the collection of agency fees from employees who object to joining the union. The prospect of Abood being overruled is what has not just the SEIU but unions representing teachers, police officers, firefighters, and other government workers nervous.

Alito explains that in most respects, the home-health workers are the employees of their patients, or “customers,” as the program calls them. So if the worker and customer disagree even about which TV shows to watch, the worker could be dismissed. Only for matters of collective bargaining are the workers considered a form of state employee, he notes, thanks to a law passed in 2003 ,“when Gov. Rod Blagojevich took office.” He seems to put a note of emphasis on the disgraced former Democratic governor, who now watches his daytime TV in a federal penal institution after being convicted of corruption charges.

Just as it seems that Harris might be a narrow opinion confined to the specific situation of the Illinois home health-care workers, Alito begins his discussion of Abood. Two Terms ago, in another decision about public-sector agency fees, “we noted that Abood is something of an anomaly” in First Amendment jurisprudence, he says. Alito doesn’t need to mention that he wrote the opinion in that 2012 case, Knox v. SEIU, and pretty much invited the constitutional challenge to Abood.

“Abood does not appear to have anticipated” the magnitude of the administrative problems that would come with trying to classify public-employee union expenditures as either “chargable” to dissenting non-members (such as for collective bargaining) or “non-chargable” (such as for political or ideological issues).

Finally, about ten minutes into his summary, Alito tips his hand. “While we do not overrule or affirm Abood, we refuse to extend it” to the Illinois home-health workers, he says. The Court is going relatively small in this case. Though that is bad news for the Illinois home-health workers who liked their union, and the public-sector unions are hanging on to a key precedent by a thread.

Alito responds to some of the dissent by Justice Elena Kagan (for herself and Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, but which she will not summarize from the bench). But he has to save some energy for his next opinion.

At 10:15 a.m., Alito moves on to Hobby Lobby. The Justice, on such an important day for his opinions, is is more animated than usual, becoming even more so as he announces his second decision.

Alito discusses the Hahn family and its business (Conestoga Wood Specialties, the other set of plaintiffs in the case), and the Green family and Hobby Lobby, which now has more than 500 stores, he notes. (He even mentions Hobby Lobby’s retail cousin, Mardel, a Christian bookstore chain that has gotten even less attention in these cases than Conestega Wood.)

Alito moves methodically through the three questions presented by the case: whether the businesses even have a claim under the Religious Freedom Restoration Act (they do, the Court decides); whether the Affordable Care Act’s requirements on contraceptive coverage creates a burden on the companies (yes); and whether the government has failed to show that the contraceptive mandate is the least restrictive means of furthering its interest in guaranteeing cost-free access to the four methods of contraception challenged in the case (also yes).

“If the owners comply with the [Department of Health and Human Services] mandate, they believe they will be facilitating abortions,” Alito says. “And if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.”

He stresses that the ruling is limited to closely held corporations, which are typically “mom-and-pop operations” that could face substantial liabilities if they were unable to use the corporate form.

Addressing some of the arguments made by Justice Ruth Bader Ginsburg in her dissent, Alito notes that the ruling will not cover shareholder disagreements in publicly held corporations, and that disagreements among family members of closely held concerns are “nothing new.”

By 10:34 a.m., Alito is finished. Justice Ginsburg begins to summarize her dissent. She is celebrating twenty years on the court, and even received a service pin at the Court’s annual employee-recognition ceremony earlier this month. (As did her secretary.)

“Justices Breyer, Sotomayor, Kagan, and I find in [RFRA] no design to permit the opt-outs in question,” Ginsburg says. “Reading the Act expansively, as the Court does, raises a host of ‘Me, too’ questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the sincerely held religious beliefs opposing those medical practices?”

And what about the employer whose religious faith teaches that “it is sinful to employ a single woman without her father’s consent, or married women, without their husbands’ consent,” she continues. “Can those employers opt out of Title VII’s ban on gender discrimination in employment?”

She quotes “a wise legal scholar” (Zechariah Chafee, as the written opinion notes) who “famously said of the First Amendment’s Free Speech guarantee: ‘Your right to swing your arms ends just where the other [person’s] nose begins.’ The dissenters believe the same is true of the Free Exercise Clause, and that Congress meant RFRA to be interpreted in line with that principle.”

Ginsburg keeps rhetorically swinging for several minutes, though never hits the nose of Justice Alito, who maintains a respectful gaze.

“Our cosmopolitan nation is made up of people of almost every conceivable religious preference,” Ginsburg concludes. “In passing RFRA, Congress did not alter a tradition in which one person’s right to free exercise of her religion must be kept in harmony with the rights of her fellow citizens, and with the common good.”

With that, Chief Justice Roberts says, “I am authorized to announce that the Court has acted upon all cases submitted to the Court for decision this term.”

He conducts the usual end-of-term housekeeping: a final orders list will be released on Tuesday. The court will be in recess until the first Monday in October. He thanks Court employees and members of the Court’s bar.

And he notes four retirements (none of which involve a Justice’s retirement): Wilma Grant, retiring as manager of the publications unit after thirty-four years of government service; Sarah Miller, a building support technician in the Marshal’s office, after twenty-five years of service at the Court (and all working the night shift, Roberts adds); Toni Singleton, a secretary in the Reporter of Decisions’ office, after thirty-seven years of government service; and Chris Vasil, the chief deputy clerk, who will retire over the summer after thirty-eight years of government service, thirty-two of them at the Court.

As the Justices depart the bench at 10:50 a.m., Marshal Pamela Talkin bangs her gavel and says, “The honorable Court is now adjourned to the time and place appointed by law.”

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.